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CHAPTER 409

OF THE

REVISED STATUTES, 1989

amended 2001, c. 6, s. 125

NOTE - This electronic version of this statute is provided by the Office of the Legislative Counsel for your convenience and personal use only and may not be copied for the purpose of resale in this or any other form. Formatting of this electronic version may differ from the official, printed version. Where accuracy is critical, please consult official sources.

An Act Respecting the Sale
of Land to Satisfy Execution Debts

Short title

1 This Act may be cited as the Sale of Land Under Execution Act. R.S., c. 409, s. 1.

Interpretation

2 In this Act,

(a) "judgment" includes a judgment and a final order or decree in any action, whether of a legal or equitable nature, requiring or ordering the payment of money or costs by any party to the judgment;

(b) "judgment creditor" includes the party entitled to such payment, whether plaintiff or defendant, and also the assignee of a judgment creditor, and the executor or administrator of a deceased judgment creditor;

(c) "judgment debtor" includes the party required to make such payment, whether plaintiff or defendant, and also the assigns of a judgment debtor, and the heirs, executors or administrators of a deceased judgment debtor;

(d) "land" includes the possessory right and right of entry of a judgment debtor, and also the interest of a mortgagor, or any equitable interest in land which may by this Act be sold under execution;

(e) "mortgagor" includes the assigns of a mortgagor, and the heirs, executors or administrators of a deceased mortgagor;

(f) "purchaser" includes the heirs and assigns of such purchaser. R.S., c. 409, s. 2.

APPLICATION TO CORPORATIONS

Application of Act

3 This Act applies to corporations as well as to natural persons. R.S., c. 409, s. 3.

INTERESTS SUBJECT TO SALE

Sale of land under execution

4 The land of every judgment debtor may be sold under execution after the judgment has been registered for one year in the registry of deeds or land registration office of the registration district in which the land is situated. R.S., c. 409, s. 4; 2001, c. 6, s. 125.

Beneficial interest in land held in trust

5 A registered judgment binds the interest of any person beneficially interested in lands held in trust for such person, and the same may be taken in execution for the payment of the debts of such person in the same manner as if such person were seised or possessed of such lands. R.S., c. 409, s. 5.

Land subject to mortgage

6 Land subject to mortgage may be levied upon, sold and conveyed under execution. R.S., c. 409, s. 6.

LAND OF DECEASED JUDGMENT DEBTOR

Application for leave to issue execution

7 (1) Where the judgment debtor dies after judgment is registered against the land of the judgment debtor, the judgment creditor may, upon affidavit setting forth the fact of the death and the amount remaining due upon the judgment, apply for leave to issue execution on such judgment

(a) if the judgment is of the Supreme Court, to the Trial Division of the Supreme Court, or a judge thereof, or to a local judge of the Trial Division of the Supreme Court acting within the district for which the local judge is appointed a judge of the county court; or

(b) if the judgment is of the county court, to the county court or a judge thereof.

Order of leave to issue execution

(2) Such court, judge or local judge, as the case may be, may, in its or his discretion, order that the judgment creditor has leave to issue an execution upon such judgment in the name of the original parties against such land, and the same may thereupon be sold under this Act.

Notice to personal representative

(3) Where probate or letters of administration of the estate of the deceased judgment debtor have been obtained, notice shall be given to the executors or administrators of the application for such leave to issue execution. R.S., c. 409, s. 7.

PRIORITY LOST BY LACHES

Notice to prior judgment creditor to sell

8 Where several judgments against the same person have been registered in the same registry or land registration office for one year and any judgment creditor whose judgment was so registered before the judgment of another judgment creditor does not take effective steps to sell the land bound by the judgments, the subsequent judgment creditor may give written notice to the prior judgment creditor requiring the prior judgment creditor to sell such land within three months after the service of such notice upon the prior judgment creditor. R.S., c. 409, s. 8; 2001, c. 6, s. 125.

Priority acquired by subsequent judgment creditor

9 Where such prior judgment creditor does not, in the opinion of the court or a judge, take effective steps to sell the land within three months from the service of such notice, the subsequent judgment creditor giving the notice shall acquire priority for his judgment over the judgment of the judgment creditor upon whom such notice is served, and may, upon notice of the application to such judgment creditor, obtain from the court in which his judgment was obtained, or a judge thereof, an order in the action for leave to sell the said land, free from the lien or encumbrance of the prior judgment. R.S., c. 409, s. 9.

SALE AND SHERIFFS DEED

Direction to sheriff to sell

10 The judgment creditor may direct the sheriff to sell the whole or any portion of the land lying within any registration district in which the judgment is registered. R.S., c. 409, s. 10.

Duty of sheriff

11 (1) Where a judgment has been registered for one year the sheriff, on receipt of an execution issued on the judgment, without appraisement, shall proceed to sell the land bound thereby, or the portion thereof so directed to be sold.

Notice of sale

(2) The judgment creditor shall cause to be inserted by five consecutive weekly insertions preceding the day of sale, in one newspaper which is published, or if none is published, or if only one paper is published, and the proprietor thereof refuses to insert it at a reasonable rate, to be determined by the sheriff of the county in which the land to be sold is situate, such reasonable rate not to exceed the rates charged by the Royal Gazette for similar advertisements, in one which circulates, in the county in which the land is situated an advertisement containing a description of the land directed to be sold, stating that such land is to be sold under execution at the suit of the plaintiff or defendant, as the case may be, and the time and place fixed for such sale and having appended thereto the names of the sheriff and the solicitor of the judgment creditor.

Posting up and delivery of notice

(3) Copies of the advertisement shall be posted up in the most public places of the city, town or settlement in which the land lies, and mailed, postage prepaid and registered, to each subsequent registered encumbrancer against said land, for at least twenty days before the time appointed for the sale.

Conduct of sale

(4) At the time and place so fixed, the sheriff shall sell the land so advertised at public auction to the highest bidder. R.S., c. 409, s. 11.

Sale of certain portions first

12 Where the judgment debtor, by notice in writing delivered to the sheriff at least ten days before the sale, requires that certain portions of the land so advertised be first sold, the sheriff shall cause the same to be first offered for sale and, if a sufficient sum is realized therefrom to satisfy the execution, interest and necessary expenses attendant on the sale, no other part of such lands shall be sold, but otherwise the sheriff shall proceed with the sale of the remainder. R.S., c. 409, s. 12.

Deed to purchaser

13 The sheriff shall execute to the highest bidder, or his nominee, a deed of land so sold, which shall be sufficient to convey to the purchaser named in the deed all the interest of the judgment debtor in such land bound by the judgment, free from the judgment for which the land was sold and any lien or encumbrance recorded subsequent to it. R.S., c. 409, s. 13; 2001, c. 6, s. 125.

Deed as prima facie evidence

14 A deed executed by a sheriff, and purporting to convey land sold under execution, is prima facie evidence of the proceedings referred to therein, that the requirements of this Act were duly complied with and that the interest of the debtor bound by the judgment against the debtor had been conveyed by such deed to the purchaser, free from the judgment for which the land was sold and any lien or encumbrance recorded subsequent to it. R.S., c. 409, s. 14; 2001, c. 6, s. 125.

PURCHASERS TITLE

Land in possession of tenant

15 Where the land so sold, or any portion thereof, is in the possession of a tenant of the judgment debtor holding under a tenancy created previously to the registry of the judgment, the purchaser becomes the landlord in the place of the judgment debtor, has the like rights and remedies against the tenant as the judgment debtor would have had if such sale had not taken place and is entitled to all rents accruing due after such purchase. R.S., c. 409, s. 15.

Land subject to mortgage

16 (1) The effect of the sale and conveyance of land subject to mortgage is to vest in the purchaser all the interest of the mortgagor therein bound by the judgment and to vest in such purchaser the same rights as such mortgagor would have had if such sale had not taken place.

Right of purchaser to satisfy mortgage or lien

(2) The purchaser may pay, remove or satisfy any mortgage, charge or lien which, at the time of the registry of the judgment, existed upon the land so sold, in like manner as the mortgagor might have done, and thereupon the purchaser acquires the same estate, right and title as the mortgagor would have acquired if the payment, removal or satisfaction had been effected by the mortgagor.

Entitlement to release of mortgage

(3) On payment of the amount due on the mortgage by the purchaser, such purchaser is entitled to a release. R.S., c. 409, s. 16.

Mortgagee as purchaser

17 (1) A mortgagee of land so sold, or the heirs or assigns of such mortgagee, may be the purchaser at such sale and notwithstanding that the mortgagee is the judgment creditor, and the mortgagee acquires the same estate, interests and rights thereby as any other purchaser.

Release of mortgage

(2) Where the mortgagee becomes the purchaser, the mortgagee shall give to the mortgagor a release of the mortgage debt.

Where purchaser not mortgagee

(3) Where another person becomes the purchaser and the mortgagee enforces payment of the mortgage debt against the mortgagor, the purchaser shall repay the debt and interest to the mortgagor and, in default of payment thereof within one month after demand, the mortgagor may recover the debt and interest from the purchaser and has a charge therefor upon the mortgaged lands. R.S., c. 409, s. 17.

WRIT OF POSSESSION

Summons to show cause

18 Any person, who has obtained from the sheriff a deed of land sold under execution, may apply to a judge of the court out of which the execution issued for a summons calling upon the judgment debtor, and upon every person in possession of such land, or any portion thereof, deriving title by, through or under the judgment debtor, subsequently to the registry of the judgment, to show cause why a writ of possession should not issue to put the purchaser in possession. R.S., c. 409, s. 18.

Service of summons

19 (1) The summons shall be served on the judgment debtor and on any such person in possession.

Substituted service

(2) Where it is made to appear to a judge that prompt personal service cannot be effected, the judge may make such order for substituted or other service, or for the substitution of notice for service, by letter, public advertisement or otherwise, as is just. R.S., c. 409, s. 19.

Writ of possession

20 Upon the return of the summons, the judge may receive evidence, either viva voce or by affidavit, and if the judge is of the opinion that the purchaser is entitled to the possession of the land, as against the persons named in the summons, and that such persons are withholding the possession of the land, the judge shall make an order directing a writ of possession to issue out of such court, and may in such order direct that such writ shall be issued only after a certain number of days, to be fixed by the judge. R.S., c. 409, s. 20.

Failure to comply with order

21 Where the persons mentioned in the summons do not deliver up possession of the land forthwith, or within the time mentioned in the order, the sheriff shall immediately execute the writ of possession and put the purchaser in possession of the land. R.S., c. 409, s. 21.

Condition for entitlement of applicant to costs

22 The applicant for the summons shall not be entitled to any costs unless, at least ten days before the application, the applicant has served such persons with a notice demanding possession of the land or left such notice at their respective residences. R.S., c. 409, s. 22.

Form of writ of possession

23 The writ of possession may be in the form in the Schedule to this Act or to the like effect. R.S., c. 409, s. 23.

SURPLUS PROCEEDS

Surplus

24 Where the sum realized by the sale is more than sufficient to satisfy the execution, interest and necessary expenses attendant on the sale, the surplus shall be paid by the sheriff to such person as is directed by an order of the court or a judge. R.S., c. 409, s. 24.

GENERAL PROVISIONS

Land straddling county line

25 Where the land of any person is situated in adjoining counties, with the boundary line between such counties running through the same, the sheriff of either of the said counties may sell such land under an execution issued upon a judgment which binds the land and may execute a deed thereof to the purchaser, and such sale and deed has the same effect as if all the land were situated within the county of which that sheriff is sheriff. R.S., c. 409, s. 25.

Sheriff vacating office before execution of deed

26 (1) If the sheriff dies, or otherwise vacates his office after the sheriff has made a sale of land under this Act but before the execution of a deed, his successor shall execute a deed of the land to the purchaser.

Deed lost before registration

(2) If a deed executed by a sheriff is lost before the registry thereof, the sheriff, or his successor, may execute to the purchaser a duplicate of such deed. R.S., c. 409, s. 26.

SCHEDULE

(Section 23)

FORM OF WRIT OF POSSESSION

. . . . . . . . . . SS.

Elizabeth II, by the Grace of God, of the United Kingdom, Canada and Her other Realms and Territories, Queen, Head of the Commonwealth, Defender of the Faith.

To the sheriff of the County of . . . . . . . . . . or to any other of our sheriffs:

Whereas A.B. is the purchaser at sheriffs sale of land hereinafter described, and it has been adjudged that as against C.D. he is entitled to the possession of (here describe the land);

We command you that you omit not by reason of any liberty of your county, but that you enter the same and without delay you cause the said A.B. to have possession of the said land, and that you cause to be paid and satisfied unto the said A.B., at the value thereof in money, the sum of . . . . . . . . . . for costs hereof, and your own fees, out of the goods and chattels, lands or tenements of the said . . . . . . . . . . Whereof fail not and make due return of this writ unto our said . . . . . . . . court at . . . . . . . . . . in thirty days from the issue hereof.

Issued at . . . . . . . . . . this . . . . . . . . . . day of . . . . . . ., 19. . . . .

R.S., c. 409, Sch.

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